Notice for the OJ

 

Action brought on 16 March 2004 by Peroxid-Chemie GmbH & Co. KG against the Commission of the European Communities

(Case T-104/04)

Language of the Case: German

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 16 March 2004 by Peroxid GmbH & Co. KG, Pullach (Germany), represented by M. Karl and C. Steinle, lawyers.

The applicant claims that the Court should:

-    annul Article 2(a), (c) and (d) of the Decision of the Commission of the European Communities of 10 December 2003 (notified on 7 January 2004) in Case COMP/E-2/37.857 - Organic Peroxide;

-    in the alternative, reduce the fines imposed on the applicant in Article 2(c) and (d) of the decision;

-    set the fine imposed on Akzo Nobel Polymer Chemicals B.V., Akzo Nobel N.V., and Akzo Nobel Chemicals International B.V., as jointly liable companies at EUR 120.75 million;

-    order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

By the contested decision the Commission held that the applicant and five other undertakings (including Akzo) or groups of undertakings infringed Article 81(1) EC by participating in a series of agreements and concerted practices on the market for organic peroxide. Two fines were imposed on the applicant. No fine was imposed on Akzo.

The applicant is not objecting to the decision as a whole but only to the fines imposed on it therein. The applicant takes the view that the Commission should not have imposed two fines on the applicant as a result of its participation in anti-competitive practices on the market for organic peroxide. The Commission either infringed the prescription provisions or the prohibition on double penalties. Even if the two penalties were imposed on the applicant for two different infringements, the first one (from 1971 to the end of August 1992) on the part of the applicant was already time-barred. If, on the other hand, both fines were imposed for one and the same continuous infringement on the part of the applicant, then there was a double penalty.

The applicant also argues that the Commission disregarded the maximum limit in Article 15(2) of Regulation No 17 as the fines imposed on the applicant by far exceeded 10% of its total turnover in the last trading year before adoption of the decision. Furthermore, the Commission should not have classified the applicant as a second-time offender and should therefore not have been able to increase the basic amount of the fine imposed on the applicant by 50%. In so doing the Commission infringed the principle of the presumption of innocence and the applicant's rights of defence.

Finally, the applicant claims that the Commission failed to have regard to the principle of equal treatment and the leniency notice of 1996 by not imposing a fine on Axzo even though it was proven to have played a decisive role in implementing the unlawful conduct. In so doing the Commission afforded the applicant's main competitor an unjustified financial advantage worth millions which directly and individually concerned the applicant.

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